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District Court 4 August 2023

R v Pash

[2023] NSWDC 297

Assault & violenceDomestic & family violence
CRIME SENTENCE COMMON ASSAULT RECKLESS WOUNDING INTIMIDATION DAMAGE TO PROPERTY.

Citation: R v Pash [2023] NSWDC 297
Court: District Court of New South Wales
Date: 4 August 2023
Judge: Colefax SC DCJ

Background

The offender, a 33-year-old man, appeared for sentencing on four principal offences arising from a single violent episode on 19 May 2022 at a residential property in Greenfield Park, Sydney. He had been staying with his mother and younger brother for several days prior to the offending.

The violence began when an argument erupted between the offender and his mother over a text message. Over the course of the afternoon, the offender subjected his mother to prolonged and severe physical violence, including repeated punching to the face, striking her over the head with a wooden chair causing a significant laceration, headbutting her on the forehead causing a further laceration, and throwing her against her car. His mother, described as a small-framed woman weighing approximately 40 kilograms, feared for her life and ultimately fled to hide in nearby bushes.

The offending extended to the mother's next-door neighbour, Mr Talevski, who attempted to shelter the mother. The offender charged through Mr Talevski's gate (damaging it), punched Mr Talevski around the head, and later threatened to stab him. The offender's younger brother was also assaulted when he attempted to intervene early in the incident.

  • What aggregate sentence was appropriate for offences of common assault, reckless wounding (two counts), and intimidation, taking into account the Form 1 matters?
  • What weight should be given to the offender's mental health issues and dysfunctional upbringing in assessing the applicable sentencing purposes, including the principle from Bugmy v The Queen?
  • What discount from the indicative sentences was appropriate to reflect the offender's guilty pleas?
  • How should the non-parole period be fixed having regard to totality, the existence of three victims, and time already served?

Decision

The District Court sentenced the offender on four principal charges: common assault of his brother (sequence 3); two counts of reckless wounding of his mother (sequences 6 and 8, both attracting a standard non-parole period of three years); and intimidation of Mr Talevski (sequence 11). Four further matters, including three common assaults and one count of damaging property, were taken into account on a Form 1 document in connection with sequence 6.

Colefax SC DCJ applied the principle from Bugmy v The Queen (2013) 249 CLR 571, acknowledging that the offender's mental health difficulties and dysfunctional upbringing reduced the weight to be given to general deterrence. However, his Honour found that specific deterrence and the need to protect the community remained fully engaged. The post-pandemic custodial environment was noted as an onerous factor in fixing the head sentence.

A 25 per cent discount was applied to each indicative sentence, reflecting the offender's guilty pleas. The indicative sentences, before discount, ranged from 12 months for the common assault of the brother up to 5 years and 6 months for the more serious reckless wounding charge (which also carried the Form 1 matters).

An aggregate sentence of six years' imprisonment was imposed, with a non-parole period of three years and ten months dating from the date of arrest, 19 May 2022. The sentence was structured to give effect to the principle of totality, and the court specifically noted the presence of three victims, with the mother being the most severely affected.

Orders Made

  • Aggregate term of six years' imprisonment imposed for sequences 3, 6, 8 and 11.
  • Non-parole period of three years and ten months, commencing 19 May 2022 and expiring 18 March 2026.
  • Balance of term of two years and two months, commencing 19 March 2026 and expiring 18 May 2028.
  • The psychologist's report by Mr Andrew Wong, dated 13 April 2023 (Exhibit 1), ordered to accompany the warrant.

Key Takeaways

  • The District Court applied Bugmy v The Queen to reduce the weight of general deterrence where an offender's background involves significant mental health issues and a dysfunctional upbringing, while confirming that specific deterrence and community protection remain fully relevant considerations.
  • An aggregate sentencing approach was adopted across four principal offences involving three separate victims, with indicative sentences set for each offence before being consolidated into a single term in the interests of totality.
  • A 25 per cent discount applied across all indicative sentences to reflect the utilitarian value of the offender's guilty pleas.
  • Where the standard non-parole period for reckless wounding under s 35(4) of the Crimes Act 1900 (NSW) is three years, the court must grapple with that benchmark when fixing the non-parole component of an aggregate sentence spanning multiple offences.
  • The onerous conditions of post-pandemic custody were treated as a relevant factor in fixing the length of the head sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4) (reckless wounding), 61 (common assault), 195(1)(a) (damaging property)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)

Cases
- Bugmy v The Queen (2013) 249 CLR 571